J. D. Const. Corp. v. Board of Adjustment of Freehold Tp.

• Decision Date: 18 April 1972
• Citation: 290 A.2d 452,119 N.J.Super. 140
• Parties: J.D. CONSTRUCTION CORP., a New Jersey Corp., Plaintiff, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF FREEHOLD and Township of Freehold, in the County of Monmouth, a Municipal Corporation of New Jersey, Defendants. FREEHOLD DEVELOPMENT CO., a partnership, Plaintiff, v. ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF FREEHOLD and the Township of Freehold, in the County of Monmouth, a municipal corporation, Defendants.
• Court: New Jersey Superior Court

Page 140

119 N.J.Super. 140

290 A.2d 452

J.D. CONSTRUCTION CORP., a New Jersey Corp., Plaintiff, v. BOARD OF ADJUSTMENT OF the TOWNSHIP OF FREEHOLD and Township

of Freehold, in the County of Monmouth, a

Municipal Corporation of New Jersey, Defendants.

FREEHOLD DEVELOPMENT CO., a partnership, Plaintiff, v. ZONING BOARD OF ADJUSTMENT OF the TOWNSHIP OF FREEHOLD and the Township of Freehold, in the County of

Monmouth, a municipal corporation, Defendants.

Superior Court of New Jersey Law Division.

April 18, 1972.

John R. Halleran, Middletown, for plaintiff J.D. Construction Corp. (Giordano, Giordano & Halleran, Middletown, attorneys).

Marvin E. Schaefer, Wanamassa, for plaintiff Freehold Development Co.

Bernard I. Weinstein, Freehold, for defendant Board of Adjustment of Township of Freehold.

John A. Kaye, Freehold, for defendant Township of Freehold.

LANE, J.S.C.

In these consolidated actions in lieu of prerogative writs plaintiffs, each of which sought a special exception under N.J.S.A. 40:55--39(b) to construct a garden apartment complex, appealed from denials by the defendant Board of Adjustment of the Township of Freehold and also contested the validity of certain provisions of the Zoning Ordinance of defendant Township of Freehold. At the conclusion of the final hearing the Court orally determined the appeals from the denials by the Board and decided an attack on certain provisions of the Zoning Ordinance. This opinion disposes of the two remaining issues, the validity of Article 10.26--9, subparagraph (W), and Article 7.1--3 of the Zoning Ordinance. Both plaintiffs challenge Article 10.26--9, subparagraph (W); plaintiff Freehold Development Co. challenges Article 7.1--3.

Article 10.26--9, subparagraph (W), provides:

The total number of individual apartment units in all apartment projects within the Township of Freehold shall not exceed fifteen (15) per cent of the total number of single family residences situated within the limits of the Township of Freehold.

Article 7.1--3 provides:

Parking facilities may be located in any yard area in all zones. In single family residential zones any parking facilities with a capacity of more than four (4) vehicles shall be permitted only in a side or rear yard.

Municipalities have no inherent authority to enact zoning ordinances. Kirsch Holding Co. v. Borough of Manasquan, 111 N.J.Super. 359, 365, 268 A.2d 333 (Law Div.1970), rev'd on other grounds 59 N.J. 241, 281 A.2d 513 (1971); Piscitelli v. Township Comm. of Tp. of Scotch Plains, 103 N.J.Super. 589, 594, 248 A.2d 274 (Law Div.1968). Such authority is limited to that given by statute. Kohl v. Mayor and Council of Borough of Fair Lawn, 50 N.J. 268, 275, 234 A.2d 385 (1967); Morris v. Postma, 41 N.J. 354, 359, 196 A.2d 792 (1964); New York Cent. R. Co. v. Borough of Ridgefield, 84 N.J.Super. 85, 92, 201 A.2d 67 (App.Div.1964); Piscitelli v. Township Comm. of Tp. of Scotch Plains, Supra, 103 N.J.Super. at 594, 248 A.2d 274.

N.J.Const., Art. IV, § VI, par. 2, grants the Legislature power to enact enabling legislation to empower the municipalities to enact zoning legislation. N.J.S.A. 40:55--30 specifically gives municipalities authority to 'limit and restrict to specified districts * * * regulate therein, buildings and structures according to their construction, and the nature and extent of their use, and the nature and extent of the uses of land * * *.' N.J.S.A. 40:55--31 authorizes municipalities to create and regulate districts in order to carry out the purposes of the statute. All such regulations must be uniform for each class or kind of structure or use throughout the district, but the regulations in one district may differ from those in another. N.J.S.A. 40:55--32 set forth the purposes of zoning legislation and the essential considerations. It provides:

Such regulations shall be in accordance with a comprehensive plan and designed for one or more of the following purposes: to lessen congestion in the streets; secure safety from fire, flood, panic and other dangers; promote health, morals or the general welfare; provide adequate light and air; prevent the overcrowding of land or buildings; avoid undue concentration of population. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view of conserving the value of property and encouraging the most appropriate use of land throughout such municipality.

Zoning ordinances must be given a reasonable construction and application. They are to be liberally construed in favor of the municipality. N.J.Const., Art. IV, § VII, par. 11; Place v. Board of Adjustment of Borough of Saddle River, 42 N.J. 324, 200 A.2d 601 (1964); Yates v. Board of Adjustment of Franklin Tp., 112 N.J.Super. 156, 158, 270 A.2d 642 (Law Div.1970).

Substantive due process demands that zoning powers, like all police power, must be reasonably exercised. A zoning regulation must not be unreasonable, arbitrary or capricious. The means selected must have a real and substantial relation to the object sought to be attained. The regulation must be reasonably calculated to meet the evil and not exceed the public need or substantially affect uses which do not have the offensive character of those which caused the problem sought to be ameliorated. Kirsch Holding Co. v. Borough of Manasquan, Supra, 59 N.J. at 251, 281 A.2d 513; Schmidt v. Board of Adjustment, Newark, 9 N.J. 405, 414, 88 A.2d 607 (1952); Gabe Collins Realty, Inc. v. City of Margate City, 112 N.J.Super. 341, 346, 271 A.2d 430 (App.Div.1970). The regulation must not impress unnecessary and excessive restrictions on the use of private property. Katobimar Realty Co. v. Webster, 20 N.J. 114, 122--123, 118 A.2d 824 (1955); Kent v. Borough of Mendham, 111 N.J.Super. 67, 77, 267 A.2d 73 (App.Div.1970).

The test of the validity of a municipal zoning ordinance is the reasonableness of the ordinance viewed in light of existing circumstances in the community and the physical characteristics of the area. Cognizance must be taken of the problem to be solved by the municipality. Vickers v. Township Com. of Gloucester Tp., 37 N.J. 232, 245, 181 A.2d 129 (1962) cert. den. and app. dism. 371 U.S. 233, 83 S.Ct. 326, 9 L.Ed.2d 495 (1963); Tidewater Oil Co. v. Mayor and Council of Borough of Carteret, 84 N.J.Super. 525, 536, 202 A.2d 865 (App.Div.1964), aff'd 44 N.J. 338, 209 A.2d 105 (1965); Glen Rock Realty Co. v. Board of Adjustment of Borough of Glen Rock, 80 N.J.Super. 79, 88 (App.Div.1963); Kirsch Holding Co. v. Borough of Manasquan, Supra, 111 N.J.Super. at 365, 268 A.2d 333.

The party attacking the validity of a zoning ordinance has a heavy burden of affirmatively showing it bears no reasonable relationship to public health, morals, safety or welfare. Proof of unreasonableness must be beyond debate. Barone v. Bridgewater Tp., 45 N.J. 224, 226, 212 A.2d 129 (1965); Vickers v. Township Com. of Gloucester Tp., Supra, 37 N.J. at 242, 181 A.2d 129; Fischer v. Township of Bedminster, 11 N.J. 194, 204, 93 A.2d 378 (1952); Johnson v. Montville Tp., 109 N.J.Super. 511, 519, 264 A.2d 75 (App.Div.1970); Bellings v. Denville Tp. in Morris County, 96 N.J.Super. 351, 356, 233 A.2d 73 (App.Div.1967); Graves v. Bloomfield Planning Bd., 97 N.J.Super. 306, 314, 235 A.2d 51 (Law Div.1967). The presumption may be overcome by a showing on its face or in the light of facts of which judicial notice can be taken, of transgression of constitutional limitations or bounds of reason. Moyant v. Paramus, 30 N.J. 528, 535, 154 A.2d 9 (1959).

The judicial role in reviewing a zoning ordinance is tightly circumscribed. There is a strong presumption in favor of its validity. A court cannot pass upon the wisdom or lack of wisdom of an ordinance. It may only invalidate a zoning ordinance if the presumption in favor of its validity is overcome by a clear, affirmative showing that it is arbitrary or unreasonable. Harvard Ent., Inc. v. Board of Adj. of Madison, 56 N.J. 362, 368, 266 A.2d 588 (1970); Morris v. Postma, Supra, 41 N.J. at 359, 196 A.2d 792; Vickers v. Township Com. of Gloucester Tp., Supra, 37 N.J. at 242, 181 A.2d 129; Bogert v. Washington Tp., 25 N.J. 57, 62, 135 A.2d 1 (1957).

The functions of the legislative bodies and the judicial forums are distinct. The wisdom of a particular course chosen by a governing body is reviewable only at the polls. Kozesnik v. Montgomery Tp., 24 N.J. 154, 167, 131 A.2d 1 (1957); Johnson v. Township of Montville, Supra, 109 N.J.Super. at 519, 264 A.2d 75; Bellings v. Denville Tp., Supra, 96 N.J.Super. at 356, 233 A.2d 73; Kirsch Holding Co. v. Borough of Manasquan, Supra, 111 N.J.Super. at 367, 268 A.2d 333. In Kozesnik, supra, Chief Justice Weintraub (then Justice), said:

The zoning statute delegates legislative power to local government. The judiciary of course cannot exercise that power directly, nor indirectly by measuring the policy determination by a judge's private view. The wisdom of legislative action is reviewable only at the polls. The judicial role is tightly circumscribed. We may act only if the presumption in favor of the ordinance is overcome by a clear showing that it is arbitrary or unreasonable. (24 N.J. at 167, 131 A.2d at 8)

The total factual setting must be evaluated in each case. If the validity of the ordinance is in doubt, the ordinance must be upheld. Euclid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Harvard Ent., Inc. v. Board of Adj. of Tp. of Madison, Supra, 56 N.J. at 369, 266 A.2d 588; Vickers v. Township Com. of Gloucester Tp., Supra, 37 N.J. at 242, 181 A.2d 129; Bogert v. Washington Tp., Supra, 25 N.J. at 62, 135 A.2d 1; Yanow v. Seven Oaks Park, Inc., 11 N.J. 341, 353, 94 A.2d 482 (1953); Bellings v. Denville Tp. in Morris County, Supra, 96 N.J.Super. at 356, 233 A.2d 73.

The essence of zoning is to provide a balanced and well ordered...